High Court asked to decide on Curtin evidence

The Government has asked the High Court to decide whether it has any
entitlement, given the separation of powers, to grant orders to Circuit
Court Judge Brian Curtin which would prevent a computer, alleged to have
contained child pornographic images, and other materials seized by
gardai from his home being used as evidence in any other "proceedings,
process or inquiry".

The government motion was brought after Judge Curtin, on June 2nd last,
the day when the Minister for Justice proposed a motion in the Dail for
the removal of Judge Curtin from office, initiated High Court
proceedings  seeking declarations that the material was seized
unlawfully and restraining its use in any other proceedings or inquiry.

Yesterday, Mr Donal O'Donnell SC, for the government, said the case
raised significant constitutional issues relating to the separation of
powers.  He believed the purpose of Judge Curtin's action was to seek
determinations from the court as to the admissibility of evidence to be
heard by an Oireachtas committee inquiring into the Judge's conduct. It
was no coincidence that the Judge's proceedings were taken on June 2nd,
when the motion for the removal of the Judge was placed before the
Oireachtas.

There was an "absolute urgency" in having the issues determined,
counsel said.  The government would argue the court could not and should
not grant the declarations sought by Judge Curtin because the matter was
before the Oireachtas which had full jurisdiction to deal with issues
regarding admissibility of evidence.

Mr John Rogers SC, for Judge Curtin , said the judge was in hospital and
receiving treatment.  Counsel said he did not see that the government
motion was urgent and he would like time to take instructions consider
the matter.

In seeking time, he was not seeking to impede the Oireachtas committee
in any way.  Judge Curtin's case was independent of any matter before
the Oireachtas and he did not see that it would delay the proceedings
before the Oireachtas.

The President of the High Court, Mr Justice Finnegan, said he regarded
the motion as urgent and it was his view it raised discrete legal
issues.  He said he would fix the hearing for July 13th and the parties
could mention the case on July 2nd.

On April 23rd last, Judge Curtin was acquitted on a charge of possessing
child pornography by direction of the trial judge, Judge Carroll Moran,
after it was learned that a warrant used to search Judge Curtin's home
in May 2002 had been used too late. During that search, a computer, said
to contain images of child pornography, and other materials were seized.

On June 2nd last, Judge Curtin brought proceedings against the Garda
Commissioner, the Attorney General, the Government and the Director of
Public Prosecutions. On the same day, the Minister for Justice proposed
a motion in the Dail calling for the removal of Judge Curtin from office
"for stated misbehaviour". The motion has been adjourned in both the
Dail and Seanad pending receipt of a report from an Oireachtas Committee
to inquire into the conduct of Judge Curtin .

On June 4th, the Oireachtas passed a motion establishing that Oireachtas
Committee of four TDs and three Senators. T

Yesterday, the government moved its motion asking the court to direct a
trial of issues arising from Judge Curtin's proceedings.

The issues are whether the judge is entitled to declarations that the
computer and other materials removed from his home on May 27th 2002 were
removed unlawfully and in breach of his constitutional rights and
whether, the computer and materials, having been declared inadmissible
as unconstitutionally and unalwfully obtained evidence, may not be used
in evidence in any other proceedings, process and inquiry.

The government also wants the court to rule on whether it is entitled to
make an order restraining the defendants from making any use whatsoever
of the computer and materials or from delivering them to third parties.

In an affidavit grounding the government's motion, Mr Peter Ryan,
Assistant Secretary General of the Department of the Taoiseach, said the
Oireachtas has set in train a process for the removal of Judge Curtin
from office.  He believed some of the reliefs sought by Judge Curtin
appeared to be intended to prevent the Oireachtas from having access to
information and materials which may be of relevance to the discharge by
the Houses of their functions.

Mr Rogers, with Mr James O'Reilly SC, for Judge Curtin , said the
government was seeking to have the court determine an issue as to
whether the court could engage at all in the proceedings brought by his
client.

Mr Rogers said Judge Curtin was undergoing treatment in hospital and it
was not clear when he would be available "on a well basis".   The work
of the Oireachtas Committee to inquire into the conduct of Judge Curtin
should remain unimpeded by the proceedings.  Its work had not commenced
and it was to make its first rulings next Tuesday.

His side had only received the government motion last Wednesday and he
wanted time to consider the position.  He needed to discuss the matter
with Judge Curtin because there were matters in the Garda Commissioner's
defence which he believed the Judge took issue with. His side had just
received the defence on June 22nd.

Mr Rogers said the Judge denies inappropriate behaviour and there were
averments in the Commissioner's defence which suggested otherwise.
Counsel said the Comissioner stated that among the material seized from
the Judge;s home were images constituting child pornography.

Any computer, Mr Rogers said, was capable of being assailed by trojan
viruses and, if Judge Curtin's trial had proceeded, an expert would have
said that viruses were found in the Judge's computer.  The
Commissioner's defence cut deep at the Judge's defence.

Mr Rogers agreed with Mr Justice Finnegan that the Commissioner's plea
regarding the images of child pornography was entirely irrelevant to
Judge Curtin's proceedings.  Mr Justice Finnegan said the real issue in
Judge Curtin's proceedings was whether the material seized from Judge
Curtin's home and reports or other material derived from it could be
used in any process.

Mr Rogers said he wished to reply to the Commissioner's defence in depth
and would need to take instructions. He found himself in a peculiar
situation. Three weeks ago, officers of the State had appeared to be
passing around material which had been declared to be unconstitutionally
obtained against a Circuit Court judge in a criminal trial.  His side
had though it wise to stop that and had initiated proceedings. He was
aware of two reports, from the Garda Commissioner and DPP, relating to
that material.

Mr Maurice Collins SC, for the Garda Commissioner, said the statement in
the Commissioner's defence to the effect that material seized from judge
Curtin's home included "child pornography" was made in repaly to a
claim by Judge Curtin that the gardai were acting unlawfully in
retaining possession of the material.  It was a criminal offence to have
such material and the Commissioner could not give it to any person.